Publishers

Publisher Agreement Terms & Conditions

Rev February 2011

1. Term/Termination.  Either Party may terminate the insertion order (the “IO”) to which these Publisher Terms and Conditions are attached (the IO together with these Publisher Terms and Conditions, “Agreement”) at any time, with or without cause, upon twenty-four (24) hours written notice.  Notwithstanding the foregoing, in the event that either party, (each a “Party” and together the “Parties”) materially defaults in the performance of any of its duties or obligations under this Agreement and does not cure such default, or commence a cure (and diligently pursue the same to completion), within ten (10) days after being given written notice specifying the default, the non-defaulting Party may terminate this Agreement by giving written notice thereof to the defaulting Party. Except as set forth herein to the contrary, termination shall not relieve any Party from its obligations through the date of termination.

2. Reporting/Payment. Network shall pay Publisher on or before the later to occur of (i) seven (7) days after Network’s receipt of payment from its advertiser (“Advertiser”) or (ii) 30 days after end of month in which the campaign is run.  Advertiser is ultimately liable for payment, and Network, as a disclosed broker/agent, shall not be liable for payment unless and until payment is made by Advertiser. All CPC or CPA campaigns will be billed off Network’s click or lead counts respectively, as reported at http://www.CommissionWizard.com with login information provided by Network. Publisher shall be responsible for safeguarding and maintaining the confidentiality of its login and associated password.  Publisher shall be fully and solely responsible for any and all activity under Publisher's login, whether authorized by Publisher or not.  Publisher shall immediately notify Network of any unauthorized use of its account.

3. Representations and Warranties.

3.1 Network Representations and Warranties. Network represents and warrants that it has full right and authority to enter into this Agreement on Advertiser's behalf.  Network further represents and warrants that Advertiser owns or has the right to use the creative materials supplied by Network or Advertiser under the Agreement (“Creative”), that the Creative does not violate any state or federal law or regulation, that the Creative does not infringe upon or violate any third-party rights, and that the Creative does not contain pornography, nudity, obscenity, illegal substances or activity, expletives or inappropriate content that is libelous or defamatory.  

3.2 Publisher Representations and Warranties. Publisher hereby represents that it has full right and authority to enter into this Agreement.  Publisher will not use sub-publishers without Network’s prior written consent.  If Publisher uses sub-publishers, Publisher hereby represents that it has the authority to bind such sub-publishers to the terms hereof and shall be liable for any breach of this Agreement by its sub-publishers.  Publisher further represents that its/and any sub-publisher’s database is permission-based (to the fullest extent required by applicable law), that no valid, unsolicited complaints will result from any broadcast, that all emails will contain a working unsubscribe link, that the source of the email will be indicated in the Creative, that Publisher does not promote pornography, nudity, obscenity, illegal substances or activity, expletives or inappropriate language, racism, hate, fraud or content that is libelous or defamatory, and that Publisher will comply with all applicable foreign, federal, state or local statutes, laws and regulations. 

3.3 Disclaimer.  Except as expressly set forth herein, neither Party has made any other representations or warranties, including those with respect to specific results, benefits, or conversions which may be expected.

4. Proprietary Information. Advertiser, through Network, hereby grants to Publisher a revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology (collectively the "Proprietary Information") of Advertiser, as designated herein. Publisher shall have no interest in or right to the Proprietary Information except as set forth herein, and Advertiser owns and shall retain all rights to, titles and interest in its Proprietary Information. 

5. Indemnification. Each Party agrees to indemnify, defend and hold harmless the other Party and its officers, directors, shareholders, managers, employees, agents, successors and assigns (collectively “Representatives”) from and against any and all claims, losses, liabilities, damages, penalties, fines, forfeitures, judgments, and any other fees, costs, and expenses, including reasonable attorneys’ fees and related costs and expenses, (collectively “Claims”) resulting from (i) the negligence or misconduct of the indemnifying Party, (ii) a  breach of these Terms and Conditions (including but not limited to a breach of such Party’s representations, warranties, covenants or agreements under the Agreement or for fraud), (iii) any claims relating to the violation or infringement of the intellectual property rights of any third party, or (iv) a violation of any laws in the performance of such Party’s obligations under the Agreement.

6. LIMITED LIABILITY. IN NO EVENT SHALL NETWORK BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN TORT, CONTRACT OR OTHER THEORY.

7.    Confidentiality. Publisher  acknowledges  that it may receive from Network or Advertiser valuable  trade and business secrets and other proprietary and confidential information,  including,  without limitation,  information about the Network's or Advertiser’s business, products, equipment, systems, techniques and practices  (collectively,  "Confidential  Information"). Publisher shall, and shall require its employees  and agents to,  strictly  maintain  the confidentiality of the Confidential Information and not disclose, disseminate or otherwise give Confidential  Information to any other person, firm, organization or third  party,  except for an employee or agent of Publisher who has a reasonable need to obtain access and who has agreed in writing to not disclose, and  not  to  use  for  any  other  purpose, the Confidential Information. The term Confidential  Information does not include any information which, (i) at the time of the disclosure or thereafter is, or becomes, generally available to the public other than as a result of its disclosure by the Publisher or any Publisher representative in violation of this Agreement, (ii) was or becomes available to Publisher on a non-confidential basis from a source other than Network or Advertiser or any Network or Advertiser representative, (iii) is independently developed by the Publisher without the use of any Confidential Information, or (iv) was in the possession of the Publisher prior to being disclosed to the Publisher by Network or any Network representatives. The Confidential Information, including the terms hereof must be held confidential by each Party for two (2) years following the expiration or earlier termination of this Agreement.

8. Non-Competition. Publisher recognizes that Network has proprietary relationships with the Advertisers. Publisher agrees not to circumvent Network's relationship with Advertisers, or otherwise solicit, induce, recruit or encourage, directly or indirectly, any Advertiser for whom Publisher generated actions, sales, leads, impressions or clicks under the Agreement for purposes of providing or, where applicable, obtaining, advertising, marketing or promotional services similar to either Party’s services herein during the term of any IO and for the six (6) month period (the “Non-Solicitation Period”) following termination or expiration of the last IO then in effect. Notwithstanding the foregoing, to the extent that Publisher can show via written documentation that any such Advertiser already obtained or, where applicable, provided, such services from/to Publisher prior to the date of the first IO, then Publisher shall not be prohibited from continuing such relationship, provided that in doing so Publisher does not circumvent Network's relationship with the Advertiser or attempt to induce the Advertiser to reduce the amount of business it conducts with Network.  Without limiting any other right or remedy of Network under this Agreement or applicable law, including but not limited to the availability of injunctive relief, if Publisher should violate this Section 8, then as liquidated damages for the reasonable estimation of the loss of such business and not as a penalty, Publisher shall  forfeit all Publisher fees, commissions  and/or bounties (collectively, “Publisher Fees”) earned but not yet paid by Network and Network shall be entitled to a monetary compensation equal to (i) the maximum fee it would have realized, during the Non-Solicitation Period, from such Advertiser based on business concluded between Publisher and Advertiser (and, where applicable, as a result of a reduction in the business between Advertiser and Network, due to Publisher’s breach of this Section 8), and (ii) any and all expenses, including attorney fees, incurred to enforce this provision.

9.    Promotion. Neither Party may issue a press release announcing this relationship or use the other Party’s name without the prior written consent of the other.

10. Choice of Law and Venue. This Agreement shall be construed and interpreted in accordance with the laws of the State of New York without reference to its conflict of law provisions, and with the same force and effect as if fully executed and performed therein.  Each Party hereby consents to the exclusive personal jurisdiction of the State and Federal Courts of the State of New York, Manhattan County, and acknowledges that venue is proper only in such courts. 

11. Fraud. Network actively monitors traffic for fraud. Network reserves the right to suspend Publisher’s account and investigate Publisher for fraudulent activity at its sole discretion pending further investigation. By way of illustration and not of limitation, Network may suspend (and later terminate) Publisher’s account if Network suspect or determine that Publisher (a) generates multiple leads from the same IP address, (b) has conversion rates significantly higher than Network’s average, (c) has EPC values significantly higher than Network’s average, (d) places Network’s or Advertiser’s links on incentivized websites without Network’s prior written consent, (e) fails to properly identify all sub-publishers, or (f) generates multiple leads using proxy servers. 

If Network determines that Publisher has committed fraud, the Publisher will forfeit all Publisher Fees for all programs and its account will be terminated. In addition, in the event that Publisher has already received payment resulting from fraudulent activities, Network reserves the right to seek credit or remedy from future earnings or to demand reimbursement from Publisher for all such Publisher Fees. 

Fraudulent activity includes, but is not limited to, inflating the amount of events through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, device, programs, robots, iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing an event. In addition, Network shall deem you to have engaged in fraudulent activity if Publisher through any action or inaction, (a) causes the referring URL to be suppressed or blank, (b) inflates or lowers the conversion rate, or (c) fails to identify all sub affiliates by populating their unique ID through the C1 variable. Publisher shall not, nor shall Publisher knowingly permit any other entity or person, to, (a) establish or cause to be established any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating events, or otherwise attempt to induce Internet users to click on any Creative through use of any other incentives, or (b) generate traffic in a manner other than as set forth in the applicable agreement or insertion order, in each case without obtaining our prior written approval. The foregoing merely constitutes examples of fraudulent activity and should not be taken as a comprehensive list of all possible fraudulent activity.

12. Minimum Eligibility Requirements. All Publisher websites, affiliated websites and e-mail distribution lists (collectively the "Media") must meet the following criteria, at a minimum: (1) All Publishers that wish to send advertisements via email must have the consent (a minimum of single opt in or consent, but, where required by law, Publisher shall have double opt consent) of the consumer to send such email; (2) Publisher shall maintain records evidencing such consent including, without limitation member opt-in date, registration source, email address, and privacy policy of source site, and will supply such records to Network within one (1) business day of request thereof; (3) Publisher may not offer incentives to users; (4) Publisher's policies must be compliant with all applicable and regulations including but not limited to the CAN-SPAM Act of 2003; (5) Spawning process pop-ups are prohibited; (6) Foreign traffic is prohibited unless otherwise specified by Network and for unauthorized international clicks or leads Network reserves the right to withhold payment for clicks or leads generated by users outside of the United States of America; (7) Publisher may not place offers on any form or placement where the user is forced to make a selection from a list of offers in order to proceed or advance in a process; (8) Publisher must honor all opt-out requests in compliance with applicable law; and (9) Other criteria as Network may from time to time determine, in its sole discretion.

13. Advertising Guidelines. Publisher must adhere to the following criteria: (1) Co-Reg advertising is prohibited, which includes campaigns that generate leads using a "registration path" process ("No thanks" or "Skip" links are insufficient disclaimers for Registration Path sites); (2) Paid search is prohibited unless approved by Network; (3) Downloadable software advertising is prohibited; (4) Incentives are prohibited, which includes, but is not limited to, compensation, rewards points, lotteries, contests, sweepstakes, give-aways, prizes, gifts or cash to entice a visitor to complete the lead registration form; (5) Objectionable material, as determined the Network’s sole discretion, is prohibited; Publisher will only run approved Creative and text in its advertising of the lead registration form; (6) Publisher must not alter or modify Creative without the prior written consent of Network; (7) Publisher must not alter the user's experience (by way of illustration and not limitation, publisher shall not insert a page between the link in the publisher's email to users and advertiser's landing page); (8) Publisher will not sub-affiliate (rebroker) without Network's prior written consent; (9) Publisher must not generate leads through call centers or in chatrooms without the written consent of Network; and (10) All Network campaigns allow for email traffic only, unless otherwise specified.

14. Publisher Must Use Approved Formats & Creatives.  All from lines, subject lines, headlines, text links, banners, Creatives and ad copy must be pre-approved in writing by Network or be one of Network’s approved Creatives.  If Publisher is approved by Network to send link out traffic from a website, all marketing materials used to drive traffic to that website must be approved by Network.  No Publisher may make any change to the design, copy, or text of messages that Publisher disseminates without prior written approval from Network.  Final email and live ads will be sent and perform exactly as Network approved Creatives. If the Publisher disseminates any Creatives not approved by Network, Publisher will not be paid for the leads generated or cost incurred from the placement.

15. CPC Click/Conversion Discrepancies. For Publishers running any of Network’s CPC campaigns, below are the reasons why Publishers may see a discrepancy in the click count between their system and Network’s system:  (1) IP of Clicker is Blocked - There are a number of bots out there that are clicking on seeded emails for various purposes.  For instance, Lashback and Email Data Source are used for competitive analysis and compliance.  If Network cannot identify the source through an IP lookup (i.e.http://private.dnsstuff.com/tools/ipall.ch?ip=207.206.148.78), then Network shall look at IP's that generate a significant number of clicks and $0 in revenue (across all affiliates historically) to determine the validity of the click.  If Network were to count these clicks, the EPC values would be skewed in Network’s reporting and on the advertiser side.  Therefore, Network has blocked those clicks before the redirect occurs.  Network can consolidate a list of IP addresses that are blocked and send them to Publisher as often as Publisher requests (the list will not include foreign clickers); (2) Duplicate Clicks From Same IP - Network only counts one click per cookie and one click per IP in a 24 hour period (with the exception of ISP proxies like AOL).  Network also has more sophisticated ways of tracking clicks from the same computer.  This could cause a discrepancy between Network’s click count and the Affiliate's tracking.  This may also cause a discrepancy between Network’s click count and Network’s conversion count; (3) IP of Clicker is Foreign - Network’s PPC product is only for US based traffic, so Network does not count foreign traffic as a valid click in Network’s CPC system; (4) Cookies are Disabled - Network has found that the conversion % of clicks without cookies is extremely small and that the vast majority of clicks without cookies are robot clickers.   Therefore, Network has created a temporary page (i.e.http://www.openpaths.com/click/nocookie.cgi?&sid=742&pub=400001) to inform the user to enable cookies.  Once they enable and reclick the URL, the click and any subsequent conversion will be recorded in Network’s system; (5) JavaScript is Not Enabled - Network has found that the conversion % of clicks without JavaScript is extremely small and that the vast majority of clicks without JavaScript are robot clickers.  Therefore, Network has created an intermediary page.  Once users interact with Network’s intermediary page, the conversion will take place in Network’s system; and (6) Too many clicks from the same IP range, ISP or other environment factors may trigger an audit of Publisher’s traffic.

16. Miscellaneous. This Agreement may not be changed or modified except in a writing executed by both Parties.  No action taken by a Party shall be considered a waiver of a breach, right or obligation under this Agreement unless done so in a writing signed by the waiving Party.  The waiver by either Party of a breach, right or obligation shall not constitute a waiver of any other or subsequent breach, right or obligation.  When used herein, the term Publisher shall include any and all sub-publishers.  If any provision of this Agreement is found to be invalid or unenforceable for any reason, the remainder of this Agreement shall remain in full force and effect.  This Agreement sets forth the entire agreement between the parties and supersedes all prior proposals, agreements and representations between the parties, whether written or oral, regarding the subject matter herein.  Neither Party may assign this Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement to a successor in interest via merger or stock or asset purchase or sale. This Agreement shall be binding upon and shall benefit the Parties and their respective successors and permitted assigns. 

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date of the last signature set forth below.